5.  The applicant was born in 1955 and is currently in Aachen Prison.
6.  On 7 May 1993 the Bochum Regional Court convicted the applicant of sexual assault and sexual abuse of a minor committed in 1992. It sentenced him to three years and six months' imprisonment and ordered his preventive detention pursuant to Article 66 of the Criminal Code (see paragraphs 26-27 below). The court found that the applicant had sexually assaulted and abused a thirteen-year-old boy who, after having drunk alcoholic beverages with the applicant in front of the Bochum train station, had agreed to spend the night in the applicant's apartment for fear of disputes with his mother. The court, having consulted a medical expert, considered that the applicant had acted with full criminal responsibility. He suffered from a dissocial personality disorder which was characterized notably by a lack of feelings of guilt. That disorder did not, however, amount to an illness diminishing his criminal responsibility.
7.  The Bochum Regional Court further noted that the applicant had previously been convicted, in particular, of sexual assault and abuse of a nine-year-old girl committed in 1981, attempted sexual abuse of a nine-year-old girl committed shortly after his release from prison in 1985 and sexual abuse of a five-year-old boy and an eight-year-old boy committed in May 1986 shortly after his previous conviction. He had committed all previous offences with full criminal responsibility.
8.  Since 28 March 1996 the applicant, having served his full prison sentence, has been in preventive detention for the first time, initially in Werl Prison and since May 1998 in Aachen Prison.
9.  The continuation of the applicant's preventive detention was ordered at regular intervals. In the course of such judicial review proceedings, the Aachen Regional Court had also examined the applicant's request that his preventive detention be executed in a psychiatric hospital. On 10 March 2003 it dismissed that request, considering that the applicant should make a therapy aimed at changing his conduct, but that this did not necessitate his treatment in a psychiatric hospital.
10.  The applicant had served ten years in preventive detention by 27 March 2006.
11.  On 31 May 2006 the Aachen Regional Court, having held a hearing, dismissed the applicant's request to declare his preventive detention terminated after expiry of a period of ten years or to suspend its further execution and grant probation.
12.  The Regional Court considered that the applicant, if released, would commit further serious offences, in particular sexual assault and abuse of minors, resulting in considerable psychological or physical harm to the victims (Article 67d § 3 of the Criminal Code, see paragraph 31 below). It agreed in this respect with the conclusions drawn by two medical experts in a psychiatric expert report dated 7 April 2006 and in an additional psychological expert report dated 3 April 2006 who had also found that the applicant suffered from a serious dissocial personality disorder. The Regional Court further took the view that the therapies the applicant had made in the past years had not brought about any change in his propensity to commit offences.
13.  On 27 July 2006 the Cologne Court of Appeal dismissed the applicant's appeal. Having regard to the medical expert reports obtained by the Regional Court, it equally considered that the applicant suffered from a serious personality disorder owing to which he was liable to commit further serious sexual offences. He had to receive further therapy and had to show good conduct in the course of relaxations of his conditions of detention before it could be assumed that he was no longer dangerous to the public.
14.  On 3 August 2006 the Cologne Court of Appeal found that the additional reasons given by the applicant for his appeal had reached the court only after it had already dismissed the appeal. Having considered these reasons, the court decided not to amend its previous decision.
15.  On 10 September 2006 the applicant lodged a constitutional complaint with the Federal Constitutional Court. He argued that the courts' decision to order his preventive detention breached his right to liberty as guaranteed by the Basic Law and by Article 5 § 1 of the Convention. Moreover, the retrospective extension of his preventive detention beyond the period of ten years, which had been the maximum for such detention under the legal provisions applicable at the time of his offence, to an unlimited period of time violated his right under the Basic Law and under Article 7 § 1 of the Convention not to have a heavier penalty imposed on him than the one applicable at the time of his offence.
16.  On 22 January 2007 the Federal Constitutional Court declined to consider the applicant's constitutional complaint (file no. 2 BvR 1942/06).
17.  The Federal Constitutional Court found that the applicant's complaint had no sufficient prospects of success. The applicant had failed sufficiently to substantiate by which act of a public authority he considered his fundamental rights to have been violated. In order to substantiate sufficiently a constitutional complaint, an applicant, as a rule, had to submit not only the decisions complained of, but also all other documents referred to. This requirement could only be dispensed with if the content of those documents was reproduced in the constitutional complaint in such detail that it was clear from the submissions alone whereby the alleged violation had been caused. In the present case, the applicant had failed, in particular, to submit copies of the psychiatric expert report of 7 April 2006 and of the additional psychological expert report of 3 April 2006, which had been referred to by the lower courts.
18.  The Federal Constitutional Court further noted that the decisions complained of were based on legal provisions which it had found to be constitutional. It referred to its leading judgment of 5 February 2004, file no. 2 BvR 2029/01, in this respect, in which it had considered the retrospective extension of a convicted person's preventive detention beyond the initial maximum period of ten years to be constitutional.
19.  On 19 November 2008 the Aachen Regional Court, in judicial review proceedings under Articles 67d and 67e of the Criminal Code (see paragraphs 29 and 31 below), refused to suspend the further execution of the applicant's preventive detention and to grant probation. It found that it could not be expected that the applicant, owing to his criminal tendencies, would no longer commit offences if released. The court endorsed the findings of the psychological expert it had consulted, who had confirmed that the applicant suffered from a dissocial personality disorder and had not yet sufficiently reflected upon his alcohol and drug consumption. It considered that therefore, the applicant was liable to commit robberies, assaults and sexual assault of minors if released.
20.  On 16 July 2010 the Aachen Regional Court refused to declare the applicant's preventive detention terminated in view of this Court's findings in the case of M. v. Germany. It considered that German law as it stood at present could not be interpreted in compliance with the Court's judgment of 17 December 2009. It was therefore up to the legislator to execute that judgment.
21.  On 16 August 2010 the Cologne Court of Appeal, following the applicant's appeal against the decision of the Aachen Regional Court of 16 July 2010, endorsed the reasons given by the Regional Court by reference to similar decisions taken by several further Courts of Appeal (see for examples paragraph 35 below) and decided to submit the case to the Federal Court of Justice. It sought a preliminary ruling on the question whether, following this Court's judgment in the case of M. v. Germany, the current version of Article 67d § 3 of the Criminal Code (see paragraph 31 below), or Article 67d § 1 of the Criminal Code, in the version in force prior to 31 January 1998 (see paragraph 30 below), was applicable in cases parallel to the M. v. Germany case.
22.  The applicant is still in preventive detention.
23.  A comprehensive summary of the provisions of the Criminal Code and of the Code of Criminal Procedure governing the distinction between penalties and measures of correction and prevention, in particular preventive detention, and the making, review and execution in practice of preventive detention orders, is contained in the Court's judgment in the case of M. v. Germany (no. 19359/04, §§ 45-78, 17 December 2009). The provisions relevant to the present case can be summarised as follows.
24.  The German Criminal Code distinguishes between penalties (Strafen) and so-called measures of correction and prevention (Maßregeln der Besserung und Sicherung) to deal with unlawful acts. Preventive detention (Article 66 et seq. of the Criminal Code) is classified as a measure of correction and prevention. The purpose of such measures is to rehabilitate dangerous offenders or to protect the public from them. They may in certain circumstances be ordered for offenders in addition to their punishment (compare Articles 63 et seq.). They must, however, be proportionate to the gravity of the offences committed by, or to be expected from, the defendants as well as to their dangerousness (Article 62 of the Criminal Code).
25.  The temporal applicability of provisions of the Criminal Code depends on whether they relate to penalties or measures of correction and prevention. The penalty is determined by the law which is in force at the time of the act (Article 2 § 1 of the Criminal Code); if the law in force on completion of the act is amended before the court's judgment, the more lenient law applies (Article 2 § 3). On the other hand, decisions on measures of correction and prevention are to be based on the law in force at the time of the decision unless the law provides otherwise (Article 2 § 6).
26.  The sentencing court may, at the time of the offender's conviction, order his preventive detention under certain circumstances in addition to his prison sentence if the offender has been shown to be dangerous to the public (Article 66 of the Criminal Code).
27.  In particular, the sentencing court orders preventive detention in addition to the penalty if someone is sentenced for an intentional offence to at least two years' imprisonment and if the following further conditions are satisfied. Firstly, the perpetrator must have been sentenced twice already, to at least one year's imprisonment in each case, for intentional offences committed prior to the new offence. Secondly, the perpetrator must previously have served a prison sentence or must have been detained pursuant to a measure of correction and prevention for at least two years. Thirdly, a comprehensive assessment of the perpetrator and his acts must reveal that, owing to his propensity to commit serious offences, notably those which seriously harm their victims physically or mentally or which cause serious economic damage, the perpetrator presents a danger to the general public (see Article 66 § 1).
28.  Article 67c of the Criminal Code governs orders for the preventive detention of convicted persons which are not executed immediately after the judgment ordering them becomes final. Paragraph 1 of the Article provides that if a term of imprisonment is executed prior to a simultaneously ordered placement in preventive detention, the court responsible for the execution of sentences (that is, a special Chamber of the Regional Court composed of three professional judges, see sections 78a and 78b(1)(1) of the Court Organisation Act) must review, before completion of the prison term, whether the person's preventive detention is still necessary in view of its objective. If that is not the case, it suspends on probation the execution of the preventive detention order; supervision of the person's conduct (Führungsaufsicht) commences with suspension.
29.  Pursuant to Article 67e of the Criminal Code the court (i.e. the chamber responsible for the execution of sentences) may review at any time whether the further execution of the preventive detention order should be suspended on probation. It is obliged to do so within fixed time-limits (paragraph 1 of Article 67e). For persons in preventive detention, this time‑limit is two years (paragraph 2 of Article 67e).
30.  Under Article 67d § 1 of the Criminal Code, in its version in force prior to 31 January 1998, the first period of preventive detention may not exceed ten years. If the maximum duration has expired, the detainee shall be released (Article 67d § 3).
31.  Article 67d of the Criminal Code was amended by the Combating of Sexual Offences and Other Dangerous Offences Act of 26 January 1998, which entered into force on 31 January 1998. Article 67d § 3, in its amended version, provides that if a person has spent ten years in preventive detention, the court shall declare the measure terminated (only) if there is no danger that the detainee will, owing to his criminal tendencies, commit serious offences resulting in considerable psychological or physical harm to the victims. Termination shall automatically entail supervision of the conduct of the offender. The former maximum duration of a first period of preventive detention was abolished. Pursuant to section 1a § 3 of the Introductory Act to the Criminal Code, the amended version of Article 67d § 3 of the Criminal Code was to be applied without any restriction ratione temporis.
32.  The detention of mentally ill persons is provided for in the Criminal Code as a measure of correction and prevention if the detention is ordered in relation to an unlawful act committed by the person concerned. Article 63 of the Criminal Code provides that if someone commits an unlawful act without criminal responsibility or with diminished criminal responsibility, the court will order his placement – without any maximum duration – in a psychiatric hospital if a comprehensive assessment of the defendant and his acts reveals that, as a result of his condition, he can be expected to commit serious unlawful acts and that he is therefore a danger to the general public.
33.  By a decision of 12 May 2010 (file no. 4 StR 577/09) the Federal Court of Justice (fourth senate), in a decision concerning a retrospective order of preventive detention (nachträgliche Sicherungsverwahrung), found that the Criminal Code was to be and could be interpreted so as to comply with Article 7 § 1 of the Convention as interpreted by this Court in its judgment in M. v. Germany, no. 19359/04. Under Article 2 § 6 of the Criminal Code (see paragraph 25 above), decisions on measures of correction and prevention were to be based on the law in force at the time of the court's decision unless the law provided otherwise. Article 7 § 1 of the Convention, in its interpretation by this Court, was such a law which provided otherwise as the Court had considered that preventive detention was to be qualified as a penalty for the purposes of Article 7 to which the prohibition of retrospective punishment applied (the fifth senate of the Federal Court of Justice, in its decision of 21 July 2010, file no. 5 StR 60/10, disagreed with the fourth senate on that point in relation to a different provision on retrospective preventive detention). Therefore, court decisions concerning orders of preventive detention had to be based on the law in force at the time of the offence.
34.  Referring, in particular, to these findings of the Federal Court of Justice, several Courts of Appeal found in cases comparable, as regards the temporal course of events, to the M. v. Germany case that the abolition of the maximum period of ten years laid down in Article 67d § 1 of the Criminal Code in its version in force before 31 January 1998 could not be effected retrospectively and that this maximum period therefore still applied to preventive detention ordered in relation to offences committed prior to that date. As a consequence, these courts declared terminated the preventive detention of the detainees concerned whose first period of preventive detention had been executed beyond that maximum period and ordered their release (see, in particular, Frankfurt am Main Court of Appeal, decision of 24 June 2010, file no. 3 Ws 485/10; Hamm Court of Appeal, decision of 6 July 2010, file no. 4 Ws 157/10; Karlsruhe Court of Appeal, decision of 15 July 2010, file no. 2 Ws 458/09; and Schleswig-Holstein Court of Appeal, decision of 15 July 2010, file no. 1 Ws 267/10).
35.  On the contrary, several Courts of Appeal considered that the Court's findings in the case of M. v. Germany could not be applied at present by the domestic courts responsible for the execution of sentences as the Criminal Code as it stood did not permit its interpretation in compliance with Articles 5 and 7 of the Convention. Section 1a § 3 of the Introductory Act to the Criminal Code had expressly stipulated that the abolition of the maximum duration of ten years for a first period of preventive detention also applied to persons who had committed the offences in question prior to the entry into force of that abolition and had thereby unambiguously authorized the application of the amended law with retrospective effect. It was therefore for the legislator to execute the Court's judgment in the M. case. These Courts of Appeal accordingly did not terminate the preventive detention of the persons concerned (see, in particular, Celle Court of Appeal, decision of 25 May 2010, file no. 2 Ws 169-170/10; Stuttgart Court of Appeal, decision of 1 June 2010, file no. 1 Ws 57/10; Koblenz Court of Appeal, decision of 7 June 2010, file no. 1 Ws 108/10; Nuremberg Court of Appeal, decision of 24 June 2010, file no. 1 Ws 315/10; and Cologne Court of Appeal, decision of 14 July 2010, file no. 2 Ws 428/10).
36.  Several of these Courts of Appeal subsequently submitted such cases to the Federal Court of Justice for a preliminary ruling under a new provision of the Court Organisation Act (section 121 § 2 no. 3) in force since 30 July 2010, which is aimed at securing a uniform case-law of the German courts on that issue (see, for instance, Koblenz Court of Appeal, decision of 30 September 2010, file no. 1 Ws 108/10). On 9 November 2010 the fifth senate of the Federal Court of Justice decided to consult notably the fourth senate whether it intended to uphold its view on that point, which differed from that of the fifth senate (file no. 5 StR 394/10 and others). Unlike the fourth senate in its decision of 12 May 2010 (file no. 4 StR 577/09; see paragraph 33 above), the fifth senate considered that in cases parallel to that of M., the detainees concerned were not to be released automatically without a further examination on the merits. However, if applied retrospectively, Article 67d § 3 of the Criminal Code had to be interpreted restrictively in the light of the judgment in M. v. Germany. Preventive detention could from now on only be executed beyond the ten-year point in those parallel cases if specific circumstances in the detainee's personality or conduct disclosed an extreme risk of the most serious violent or sexual offences.